Clean Water Action Council of Ne. Wis., Inc. v. U.S. Envtl. Prot. Agency

• Decision Date: 29 August 2014
• Docket Number: No. 12–3388.,12–3388.
• Citation: 765 F.3d 749
• Parties: CLEAN WATER ACTION COUNCIL OF NORTHEASTERN WISCONSIN, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

765 F.3d 749

CLEAN WATER ACTION COUNCIL OF NORTHEASTERN WISCONSIN, INC., et al., Petitioners,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents.

No. 12–3388.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 23, 2013.

Decided Aug. 29, 2014.

David C. Bender, McGillivray, Westerberg & Bender LLC, Madison, WI, for Petitioners.

Dustin J. Maghamfar, Department of Justice, Washington, DC, for Respondents.

Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.

EASTERBROOK, Circuit Judge.

The Clean Air Act, 42 U.S.C. §§ 7401–7671q, invites each state to craft a plan (a “state implementation plan”) to control the levels of certain air pollutants. Most state plans include “Prevention of Significant Deterioration” (PSD) programs. These programs are designed to prevent backsliding in “attainment areas” (regions that meet or exceed the Act's air quality standards), while still allowing some new sources of pollution. A PSD program prevents designated sources from propelling the region's aggregate emissions over specified limits. The Act establishes these limits by setting a baseline and then a cap on pollutants above that baseline. The space between the baseline and the cap is the “increment”. In the jargon of the regulations, new sources that create a net increase in emissions “consume increment”. To simplify matters, we refer to the increment as the state's pollutant allowance. The Act grandfathers sources operational before 1975: the baseline incorporates their emissions, with post–1975 sources counting against the allowance. See 42 U.S.C. § 7479(4).

Title V of the Act, 42 U.S.C. §§ 7661–7661f, requires each covered stationary source to have an operating permit. Permits implementing Title V specify pollution-control obligations for each source. The statute allows states to administer certain aspects of the air-pollution-control regime—including Title V permits—subject to federal review.

In 2002 Georgia–Pacific asked Wisconsin to renew the Title V permit for its pre–1975 paper mill. While Wisconsin weighed that application, Georgia–Pacific modified a paper machine at the plant. The application for a permit authorizing this modification was unopposed, and the permit issued in February 2004. In 2011 Wisconsin reissued the whole plant's operating permit. Clean Water Action Council asked EPA to reject the state's decision, arguing that Wisconsin's regulations (and their application to Georgia–Pacific) incorrectly implemented the Act. The Council believes that modifications to any part of a plant, such as the one Georgia–Pacific made in 2004, require all emissions from the plant—including pre–1975 emissions incorporated into the baseline—to count against the state's allowance. If that's so, the whole plant might need to close for lack of available allowance. But EPA declined to object, see In re Georgia Pacific Consumer Products LP Plant, 2012 EPA CAA Title V LEXIS 7 (July 23, 2012), concluding that Wisconsin's approach is consonant with the agency's understanding of the statute: Modifications to pre–1975 sources do not mean that the whole plant's emissions count against the state's allowance. Only increases caused by the modifications count, the EPA concluded. After the agency published that order, the Council sought review under 42 U.S.C. § 7607(b).

Jurisdiction comes first. EPA argues that the Council necessarily challenges the regulations (75 Fed.Reg. 64,864 (Oct. 20, 2010)) that say which permits may be renewed. Section 7607(b) requires that challenges to “nationally applicable regulations” be brought before the D.C. Circuit, while challenges to actions that are “locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit”. The statute also requires that both kinds of challenge begin within 60 days of a regulation's publication. EPA contends that this court lacks jurisdiction because the Council brought the challenge belatedly and in the wrong circuit. Opinions from the Tenth and D.C. Circuits support the agency's stance. See Utah v. EPA, 750 F.3d 1182, 1184 (10th Cir.2014); Oklahoma Department of Environmental Quality v. EPA, 740 F.3d 185, 191 (D.C.Cir.2014); Medical Waste Institute v. EPA, 645 F.3d 420, 427 (D.C.Cir.2011); Motor & Equipment Manufacturers Association v. EPA, 142 F.3d 449, 460 (D.C.Cir.1998); Edison Electric Institute v. EPA, 996 F.2d 326, 331 (D.C.Cir.1993); Natural Resources Defense Council v. NRC, 666 F.2d 595, 602 (D.C.Cir.1981).

We conclude, to the contrary, that the venue and filing provisions of § 7607(b) are not jurisdictional. The EPA disregards the Supreme Court's many opinions discussing the difference between jurisdictional and claim-processing rules. See, e.g., Sebelius v. Auburn Regional Medical Center, ––– U.S. ––––, 133 S.Ct. 817, 824–26, 184 L.Ed.2d 627 (2013); Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197, 1202–06, 179 L.Ed.2d 159 (2011); Reed–Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160–66, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010). See also Webster v. Caraway, No. 14–1049, 761 F.3d 764, 768–70, 2014 WL 3767184, at *3–6 (7th Cir. Aug. 1, 2014). Venue rules have long been understood as non-jurisdictional. See Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). The Supreme Court also has held that most filing deadlines are statutes of limitations or claim-processing rules. See Auburn, 133 S.Ct. at 824–25 (listing cases); Henderson, 131 S.Ct. at 1203 (“Filing deadlines, such as the 120-day filing deadline at issue here, are quintessential claim-processing rules.”); Arbaugh v. Y & H Corp., 546 U.S. 500, 510–16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005); Kontrick v. Ryan, 540 U.S. 443, 452–56, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). While there is an exception when it comes to appeals from district courts, see Bowles v. Russell, 551 U.S. 205, 212–13, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (interpreting 28 U.S.C. § 2107), the Court has rejected arguments that other filing deadlines are jurisdictional. Henderson, 131 S.Ct. at 1203. Instead, “[t]he Court's recent cases require a ‘clear statement’ or ‘clear indication’ from Congress before a statute prescribing a precondition to bringing suit will be construed as jurisdictional.” Miller v. FDIC, 738 F.3d 836, 844 (7th Cir.2013).

Neither EPA nor Georgia–Pacific points to such a statement; we couldn't find one. The circuit-level decisions we have cited do not do so either. Utah v. EPA does not give a reason; it cites Oklahoma Department of Environmental Quality as authoritative. Oklahoma Department of Environmental Quality does not give a reason; it cites Medical Waste Institute as authoritative. Medical Waste Institute does not give a reason; it cites Motor & Equipment Manufacturers Association as authoritative. And so the chain of citations goes, until we reach Natural Resources Defense Council—which does give a reason (in addition to citing five more decisions, dating to 1974). When addressing the Hobbs Act, 28 U.S.C. § 2344, the court tells us that a

time limit [for initiating a contest to a regulation], like other similar limitations, serves the important purpose of imparting finality into the administrative process, thereby conserving administrative resources and protecting the reliance interests of regulatees who conform their conduct to the regulations. These policies would be frustrated if untimely procedural challenges could be revived by simply filing a petition for rulemaking requesting rescission of the regulations and then seeking direct review of the petition's denial.

666 F.2d at 602 (footnote omitted). This is exactly the sort of thing that the Supreme Court has held does not mark a rule as jurisdictional. NRDC tells us why the Hobbs Act and similar laws, such as § 7607(b), contain time limits, not why filing deadlines are jurisdictional. The law is full of time limits, which serve valuable functions, but they are enforced when their beneficiaries bring them to the court's attention and stand on their rights; there is no need to declare them “jurisdictional,” which means that they must be considered ahead of all other issues, even if all litigants forfeit, or even waive, their benefits. Any contention along the lines of “time limits are beneficial, so they must be jurisdictional” did not survive Kontrick and its successors, such as Henderson and Auburn.

Congress could have framed the filing and venue rules in jurisdictional terms, but it did not. Section 7607(b) does not mention jurisdiction. Auburn, 133 S.Ct. at 824–25; Henderson, 131 S.Ct. at 1204–05; Miller, 738 F.3d at 844–45; Webster, at *3-4. Nor does § 7607(b) use language that is traditionally understood as jurisdictional. And the Supreme Court has not indicated that the § 7607 filing deadline is jurisdictional. That the Council did not bring its claim within 60 days of the regulation's publication (or in the D.C. Circuit) therefore does not affect this court's jurisdiction.

Because our decision creates a conflict among the circuits on the question whether the timing and venue rules in § 7607(b) are jurisdictional, it has been circulated to all judges in regular active service. See Circuit Rule 40(e). None requested a hearing en banc.

The 60–day limit remains a binding rule, however, as does the venue requirement—and EPA has invoked the benefit of each. But although jurisdiction must be resolved ahead of other issues, see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), there is no necessary priority among non-jurisdictional issues. The EPA's contention that this challenge to a permit (and to one state's regulation) is “really” or “necessarily” a contest to a nationally applicable federal regulation would take the court into difficult ground. Cf. Environmental Defense v. Duke Energy Corp., 549...